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Federal Appeals Court to Reconsider Calif. Recall Postponement

The 9th Circuit Court of Appeals (search) set aside Monday afternoon to rehear the case made for delaying California's Oct. 7 recall election, inching back the decision whether to postpone a statewide confidence vote for Democratic Gov. Gray Davis (search).

Friday's decision to review the ruling by a three-judge panel of the court is the latest in a long series of steps that began with a summertime petition drive to force a new election. The state's constitution mandates an election be held within 80 days of certification of petitioners' signatures.

Eleven judges on the San Francisco-based appeals court will reconsider the case argued by recall opponents that as many as 40,000 California voters would be disenfranchised by an October vote because they would be forced to use punch card ballot machines that are prone to high error rates.

Supporters of the recall claimed those arguments false. Each side will have 30 minutes to present oral arguments.

• Raw Data: Decision to Reconsider Recall Ruling (pdf)
• Raw Data: Ruling Postponing Oct. 7 Election (pdf)

On Monday, a three-judge panel of the court agreed with recall opponents that the election cannot take place as scheduled because six California counties — Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano — need more time to update their equipment. The panel then stayed its decision for seven days to allow time for appeal.

The judges did not say when the new election should be held, but agreed with the suggestion by the American Civil Liberties Union (search), which argued for the postponement, that the best time to hold the election would be in March, at the same time as the presidential primary.

By next March, all of California's punch card machines must be replaced, according to a federal judge's February 2002 ruling in U.S. District Court. The machines were used in the 2002 statewide election that returned Davis to office for a second term.

Without prompting, the full court said Tuesday that it would accept briefs arguing for an en banc — or full review — by the court. It did not comment Friday on the panel's ruling.

The secretary of state's office filed briefs arguing for a re-hearing, saying the three judges had misinterpreted the U.S. Supreme Court's ruling in Bush v. Gore (search), the case that ended the recount of Florida's ballots in the 2000 presidential election. In that case, the high court ruled against continuing Florida's recount because the state lacked a consistent and verifiable method for recounting the ballots.

Attorneys arguing for the Oct. 7 election also claimed that punch card ballots are no more error prone than any other voting machines.

"We argued to the entire court to get them to take a look at this again, that the panel both misconstrued Bush and Gore, and it made a factual finding that the District Court expressly refused to make, and that's that punch cards are more error prone," said Chuck Diamond (search), who pleaded the state's case in front of the three judges.

"What attracted the entire court to take a look at this is the way the panel just took liberties with the Supreme Court's decision in Bush and Gore," Diamond told Fox News.

Chief Judge Mary Schroeder (search) will head the 9th Circuit's rehearing of the arguments. Schroeder, who is based in Phoenix, was appointed to the court in 1979 by former President Carter.

Ten other justices from the court were randomly chosen to fill out the hearing. Seven were appointed by former President Clinton, one by former President George H.W. Bush and two by former President Ronald Reagan.

Davis, as well as the candidates seeking to replace him, have continued to campaign as if the Oct. 7 election were going to be held as planned, raising money and crisscrossing the state to meet with voters. Friday's decision was welcome news to many of them.

"I have assumed from the outset that this election will be on Oct. 7. The momentum is clearly growing against the recall. I believe we will beat the recall on Oct. 7, and my attitude is let's just get it over with, let's just have this election on Oct. 7, put this recall behind us, so we can get on with governing in the state of California," Davis said at an appearance in Los Angeles with former Vice President Al Gore (search).

Republican Arnold Schwarzenegger (search) said the election should go on as scheduled because otherwise, the 500,000 people who have already sent in absentee ballots would be disenfranchised by having their votes tossed out.

"This election doesn't begin on October 7th — it's occurring right now," Schwarzenegger said in a statement. "Hundreds of thousands of Californians have already participated in this election by casting absentee ballots. They have every right to have their voices heard and their votes counted."

In making its ruling on Monday, the three-judge panel of Harry Pregerson, Richard Paez and Sidney Thomas took note of the 2000 presidential election, saying that holding the Oct. 7 vote would pave the way for "bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory."

Senior judicial analyst for Fox News Judge Andrew Napolitano (search) said he "wasn't surprised at all" by the court's decision to go to an en banc hearing.

"The three-judge panel on the 9th Circuit really stuck their necks out," Napolitano said. "You know normally judges are called upon to evaluate the accuracy of elections after they're held. It's almost unprecedented that this kind of lawsuit would be filed before the election, and that the election would be stopped just on the basis of the plaintiffs', and here, the judges' speculation."

While the 9th Circuit Court has been reversed as many times as its decisions have been upheld, the full court has overturned many rulings by its three-judge panels. In June 2002, a three-judge panel from the circuit declared the Pledge of Allegiance (search) an unconstitutional endorsement of religion and banned its recitation in public schools. The following day, the court put the decision on permanent hold to allow for appeals. It then declined to rehear the case, which now is on appeal to the Supreme Court.

Regardless of the circuit court's decision, if given the time, the parties could still appeal the case to the U.S. Supreme Court in Washington.

Diamond expressed confidence that the full court will reverse the three judges' ruling, and expected the high court to decline hearing an appeal.

"I don't think we're going to the Supreme Court. I am going to cancel my airline ticket, I don't think I am going to be needing it," he said.

Fox News' Sharon Kehnemui, Major Garrett and Adam Housley contributed to this report.